This article has been written by Ananaya Shee, 2nd year student of NMIMS, Bangalore.

Abstract

The 1990s witnessed a heated discourse on reconciling the safeguarding of biodiversity with intellectual property rights (IPRs). This debate primarily revolves around two pivotal international agreements: the Convention on Biological Diversity (CBD) and the Trade-Related Intellectual Property Rights (TRIPs) agreement of the World Trade Organisation (WTO). The CBD mandates nations to protect biodiversity and the cultural knowledge of indigenous communities linked to it, outlining access conditions to biodiversity resources. Conversely, the TRIPs Agreement compels states to align their IPR frameworks with elevated global standards, potentially impacting biodiversity and associated knowledge systems. Notably, the WTO, armed with trade sanctions, holds a unique advantage in ensuring compliance compared to the CBD, which lacks enforcement mechanisms. Key CBD principles in this context affirm state sovereignty over biological resources, emphasizing conservation and sustainable usage, while encouraging facilitative conditions for resource access, guided by mutual cooperation and contingent on the informed approval of the party granting access, the principles outlined by the CBD include ensuring fair and equitable sharing of benefits from the use of genetic resources. Furthermore, the wider application of knowledge from indigenous communities requires their consent and involvement. 

The TRIPs Agreement intersects with these CBD principles by urging developing nations to adapt their intellectual property protection laws to align with industrialized counterparts. It advocates broad patent coverage for inventions across all technological fields, extending protection to life forms not traditionally considered patentable. Regarding plant varieties, the TRIPs Agreement allows protection through patents, a sui generis system, or a combination thereof. Globally, countries like Costa Rica, Eritrea, Fiji, India, Mexico, Peru, and the Philippines are actively developing legislation to address the interplay between IPRs and biodiversity, aiming to achieve specific objectives-

Safeguarding indigenous knowledge, both traditional and contemporary, involves preventing its unauthorized use and exploitation in intellectual property claims by commercial entities.

 Additionally, it entails controlling access to biological resources to halt any perceived historical misappropriation by more influential global sectors. 

The aim is to empower communities and countries, enabling them to oversee and derive benefits from the utilization of their resources.

The recent surge in activity in this area is fuelled by scandals related to intellectual property rights (IPR) that periodically astonish the world. For instance:

There’s the patenting of age-old herbal remedies, like the US Patent (No. 5401504) granted for the healing qualities of turmeric, a knowledge deeply rooted in Indian traditions.

Another case involves the US Plant Patent (No. 5751) on the ‘ayahuasca’ plant, sacred to Amazon’s indigenous peoples and used for medicinal purposes.

Additionally, there’s the US Plant Patent (No. 5900240) for a combination of herbal compositions as hypoglycaemic agents, a practice well-documented in Indian scientific literature and ancient texts for its anti-diabetic properties.

Notably, there’s the patenting of crop varieties similar to those cultivated for centuries in specific regions, exemplified by Rice-Tec Corporation in the US (Patent No. 5663484) patenting Basmati rice varieties and even using the term “Basmati” to describe them, a term traditionally associated with aromatic rice from northern India and Pakistan.

The patenting of human genetic material, e.g. on the human cell line of a Hagahai tribesman from Papua New Guinea (US Patent No. 5,397,696); 

Plant breeders’ rights or patents on entire taxa rather than specific varieties or breeds, e.g., on all transgenic cotton and soybeans granted to the company Agracetus; and

Patents on technologies that threaten farming systems worldwide, such as US Patent (No. 5,723,765) granted to Delta and Pine Land Co., nicknamed the “Terminator Technology” for its capability to stop plant regeneration after the first generation.

Brief history of IPR related to bio-diversity

Intellectual Property Rights (IPRs) are legal protections given to ideas and information used to create new inventions or processes. These rights grant the owner the ability to prevent others from selling or using the same inventions or processes for a specific period. In return, the owner must reveal the formula or idea behind the product or process. The main goal of IPRs is to encourage innovation by providing higher financial rewards compared to what the market might naturally offer.

Although copyrights, patents, and trademarks have been around for a long time, the application of IPRs to living things and related knowledge and technologies is a more recent development. In 1930, the US Plant Patent Act was enacted, marking an early instance of granting IPRs to living entities.

A long time ago, countries started protecting new plant varieties. In 1961, they all agreed on an International Convention to safeguard these plant types. Mostly rich countries joined a group called UPOV to enforce this convention, and it officially started in 1968.

These protections, called plant varieties or breeders’ rights, give certain powers to the owner when selling their plant types. In the past, many countries allowed farmers and other breeders to use these rights freely, as long as they didn’t sell them in a fancy way. However, in 1991, a change to UPOV made these rights stricter and some countries removed the freedom for farmers and breeders.

A while back, different kinds of plants were not part of the international patent system. This was done to respect farmers who traditionally saved and swapped seeds. But in more developed countries, there were discussions about whether giving exclusive rights to plant breeders, called PBRs, would encourage more plant breeding.

In 1978, they made a big agreement called the UPOV Convention, which got even stricter in 1991, giving plant breeders even more control. At first, this convention mainly involved rich countries in the OECD, but later on, the TRIPs Agreement said that all countries in the WTO needed to protect these rights for plant varieties.

Precise relationship between IPR and biodiversity

Current IPR regimes have allowed industrial and commercial interests to appropriate the resources and knowledge of resource-rich but economically poor countries and communities, further impoverishing them and denying them the benefits of technological innovation;

• IPRs are likely to greatly intensify the trend of homogenization of agricultural production and medicinal plant use systems. In agriculture, for instance, any corporation that has spent enormous amounts of money obtaining an IPR would want to market its varieties in as large an area as possible. The result could be serious displacement of local diversity of crops (though of course IPRs would not be the only factor); 
• Increasingly, species-wide IPRs (such as those for transgenic cotton and soybeans) could stifle even public sector and small-scale private sector crop variety development; 
• Having to pay substantial royalties to industrial countries and corporations could greatly increase the debt burdens of many countries. This could further intensify the environmental and social disruption that is often caused when debt repayment measures are taken up, such as the export of natural products; 
• Farmers who innovate on seeds through re-use, exchange with other farmers, and other means, would be increasingly discouraged from doing so if the tighter regimes that UPOV 1991 sanctions are imposed on their countries; these regimes would also increase the economic burden on farmers, further discouraging innovation; 
• The ethical aspects of IPRs are serious, and to many communities and people the most important reasons for opposing current IPR regimes. The patenting of life forms is abhorrent to many traditional societies and modern conservationists because of the underlying assumption that nature exists apart from, and solely for the use of, humans. The privatisation of knowledge is also repugnant to many societies that hold knowledge to be largely, though by no means solely, in the public domain.

Heritage and traditional knowledge

Our heritage is everything that makes us who we are, passed down by our ancestors and given to us by nature. It covers our social, political, cultural, and economic systems, along with our beliefs, ethics, and traditions. This heritage includes things like traditional knowledge, which is the creative thinking and skills of people, as well as language, cultural expressions like songs and dances, and various forms of knowledge and skills, such as scientific and agricultural know-how. Nature also contributes to our heritage, including the natural features of our land, the variety of plants and animals, and the different ecosystems we’ve taken care of.

Importance of traditional knowledge

In India, traditional healing methods like Ayurveda, Siddha, and Unani are part of the official healthcare. These systems rely on a variety of plants and traditional knowledge.

Farmers and animal keepers have taken care of different crops and animals for generations, ensuring food, clothing, and healthcare.

Communities all over India have preserved natural areas, often considering them sacred. For instance, ‘sacred groves’ dedicated to local deities are thousands of years old.

Traditional knowledge is crucial in many areas. However, industries often use this knowledge to create commercial products without asking or giving credit to the original holders. Conflicts arise when this knowledge is used without permission, or when exclusive rights are claimed over it.

CBD AND TRADITIONAL KNOWLEDGE

 The convention on Biological Diversity (CBD) is the principal international instruments which explicitly acknowledges the role of traditional knowledge, innovations and practices of indigenous and local community’s tangible and visible traditional life styles in biodiversity conservation and its sustainable development. The scope of the traditional knowledge covered by the convention, however, is confined to genetic materials, it is a framework convention, setting out general principles that the parties agree to be guided by the work towards in a long-term process. According to Article 8(j) of the convention, each contracting party subject to its national legislation is required to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities tangible or visible lifestyles relevant for conservation and sustainable use of Biological resources and promote the wider application of such knowledge, innovations and practices with the approval and involvement of their holders and also encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices.

ENACTMENT OF THE BIOLOGICAL DIVERSITY ACT, 2002: THE NATIONALIZATION OF BIOLOGICAL RESOURCES IN INDIA

In 2002, about 8 years after India became a signatory to the CBD, the Indian Parliament enacted the Biological Diversity Act, 2002 (BD Act), implementing as national law the provisions of the CBD. A key focus of this legislation as outlined in the “aims and objectives” of the legislation was to ensure the “fair and equitable sharing of the benefits arising out of the use of biological resources” (Gopalakrishnan 2002).

In a manner of speaking, the legislation nationalizes India’s biological resources because the legislation in effect proclaims the sovereignty of the Indian state over all biological resources located within its territory. In doing so, India has reversed the fundamental principle of how natural resources were considered to be the common heritage of all mankind, without recognition of international boundaries. The reversal appears to have been fueled by a presumption that India had more to lose than gain under a legal regime that allows for the free trade of biological resources (Prathapan and Rajan 2011). This presumption, however, may not be entirely true, as India has benefited considerably through the free trade of biological resources. India’s Green Revolution, in the 1960s, which ensured food security, was fueled by Norman Borlaug’s hybrid variety of wheat, which was of foreign origin. Similarly, other food crops that are staples of the Indian diet, such as potato, tomato, and peas, are not of Indian origin.

Subsequent to the enactment of the BD Act, foreigners now need permission from the National Biodiversity Authority (NBA) before accessing any biological resources located within India for the purpose of “research” or “commercial utilization” or “bio-survey” or “bio-utilization.” On the other hand, Indians can access any biological resources located within India after a mere intimation to the State Biodiversity Board. However, the result of any research by Indians on such biological material cannot be transferred to foreigners without prior approval of the NBA.

The fact that Indians are allowed to access such biological resources without any preconditions presupposes that Indians are going to be fair and just in their dealing with their fellow Indians who may own valuable TK pertaining to biological resources. This crucial distinction in the permission required by Indians and foreigners betrays the protectionist, nationalist intent of the Indian legislation.

The legislation also prohibits any person, whether Indian or foreign, from applying for any IP rights “for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the NBA before making such application.” While granting approval for the filing of such IP rights, the NBA has been given the power to “impose benefit sharing fee or royalty or both or impose conditions including the sharing of financial benefits arising out of the commercial utilization of such rights.” These conditions may be imposed regardless of whether or not there is TK associated with such biological resources.

Given the framework imposed by the BD Act, it would not be an exaggeration to say that the Indian legislation in effect “nationalizes” biological resources and knowledge related to those biological resources, including TK held by indigenous people, because it is only bureaucrats sitting in the NBA who can decide the terms and conditions of benefit sharing. There is a gratuitous provision in the legislation that requires the NBA to ensure that “equitable benefit sharing” takes place on “mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers.” But how can benefit claimers enter into a mutually beneficial deal when it is the NBA and not the benefit claimers who have the final say on how the resources are accessed (Gopalakrishnan 2002)?

Perhaps the most troubling aspect of the BD Act is that it does not provide for any statutory guidance on the issue of “equitable benefit sharing.” This is a complicated issue. Take, for example, the Kani tribe. What percentage of the royalties would be deemed fair and equitable for the Kani’s TK pertaining to the arogyapacha plant? How could the Kani have reached a “mutually” beneficial deal when they did not have the power to walk out of a deal that was not in their interests?

In 2010 the Indian government’s auditor, the Comptroller and Auditor General of India, criticized the government of India for failing to notify2 guidelines on access to biodiversity, transfer of results of research and IP, etc., despite 6 years having passed since the BD Act had been notified into law (Comptroller and Auditor General, Republic of India 2010). In the same year, the NBA invited the public to comment on drafts on ABS guidelines, a sui generis law (The Protection, Conservation and Effective Management of Traditional Knowledge Relating to Biological Diversity Rules, 2009) for protecting TK related to biological resources and potential amendments to the BD Act. For unknown reasons, none of the guidelines or amendments were finalized by the NBA. In 2013 the NBA once again invited public comments on draft ABS guidelines. These guidelines have yet to be finalized.

The fact that a country like India, which has been one of the most vocal supporters of the Nagoya Protocol and the CBD, has found it difficult to notify ABS guidelines 2 decades after signing the CBD is perhaps an indication that the CBD and Nagoya Protocol need to be revisited.

Given the Indian experience so far, the international community needs to question whether the IP rights framework is the best way to protect TK related to biological resources.

Reference

 This article was originally written by Ashish Kothari and R.V. Anuradha published on cbd.int website. The link for the website lies herein https://www.cbd.int/doc/articles/2002-/A-00308.pdf.

This article was originally written by Prof S. Kannaiyan published on nbaindia.org website. The link for the full article is herein http://nbaindia.org/uploaded/docs/traditionalknowledge_190707.pdf

This article is originally written by Prashant Reddy and Malathi Lakshmikumaran published in ncbi.nlm.nih.gov/. The link lies herein https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4588132/